Friday, April 22, 2022
Sharkey on Online Platforms as Cheapest Cost Avoiders
Cathy Sharkey has posted to SSRN Products Liability in the Digital Age: Online Platforms as 'Cheapest Cost Avoiders'. The abstract provides:
Products liability in the digital age entails reckoning with the transformative shift away from in-person purchases from brick-and-mortar stores toward digital purchases from e-commerce platforms. The epochal rise of the online storefront has vastly expanded the prevalence of direct-to-consumer sales, implicating a panoply of potential harms to consumers and raising the question of how liability rules should respond, especially in light of the development of international e-commerce and cross-border sales.
Consideration of liability for online platforms as “cheapest cost avoiders” reveals the mechanism by which courts’ decision to impose liability on new entities derives from the regulatory needs of society, and hence the desire to pin responsibility on entities in the best position to have readily avoided harm arising from the imposition of excessive risks. Products liability is a microcosm of how the common law evolves over times, specifically, here, to respond to new societal risks—posed by the automobile, mass-produced goods, and now, digital e-commerce. At each juncture in its development, judges relied explicitly on deterrence, prevention of harm, or CCA rationales to address new forms of risks and prevent them from materializing into harms, and in doing so, recognized new harms and/or expanded tort liability.